Johnson, therefore, brought motions to dismiss each charge [Exhs. E-1 through E-10].  In those motions, she identified with specificity the elements for which supporting facts were unstated.   All of Johnson’s motions were summarily dismissed by the now-deceased former Chairman of the Board, M. Ellen Carpenter.\[2]/   Consequently, Johnson was deprived of the notice guaranteed by the due process clauses in both the State and federal constitutions.

·      

• The Bar Counsel produced no witnesses against Johnson at the so-called trial, which began on 2 December 2003.  This confirmed that which Assistant Bar Counsel [“ABC”] Susan Strauss-Weisberg, who played the role of prosecutor—although she never put anyone on a stand—had told Johnson prior to trial, i.e., that she was not calling any so-called witnesses.\[3]/

• Johnson had filed motions for subpoenas to issue [Exhs. I-1 and I-2], but the BBO failed to act on them, so Johnson, considering that people had schedules and were entitled to sufficient notice, took it upon herself to cause subpoenas to be served pursuant to M.G.L.  c. 233, §1.  

• When the SHO quashed Johnson’s trial witness subpoenas, an issue of first impression arose: whether the SJC and BBO rules may trump c. 233, §1. 

• No body—the BBO, the SJC single justice, or the full panel of the SJC— acknowledged the issue Johnson had raised in her briefs filed

o      at the BBO for the full Board [Exhs. BB-1 (table of contents), BB-2 (brief), CC (reply brief) at pp.3-4,   and Z (proposed findings of fact and rulings of law submitted to SHO at BBO],

o      in the Supreme Judicial Court for Suffolk County for the SJC single justice [Exhs. GG-1 (table of contents), GG-2 (brief) at pp. 18-20], and

o      in the Supreme Judicial Court for the Commonwealth for the full SJC panel [Exhs. JJ-1, JJ-2 (appellate brief, SJC), JJ-3, JJ-5 (table of contents), JJ-14, JJ-15]: 

 Johnson responded at her first opportunity:

Fig. 2.    Excerpt fromBBO “Trial” Transcript, 12/2/03, pages 7-10 (emphasis supplied)

• It was evident that the hearing officer was not an independent fact-finder:

• ·       During Johnson’s Opening Statement, SHO Phillips ordered the public out of the hearing room because Johnson used the real name of a percipient witness and, according to the SHO, there was an order commanding her to use pseudonyms at trial.  That was untrue.  There was no such order.

Fig. 4.   Excerpt from

BBO “Trial” Transcript, 12/2/03, pages 56-57 (emphasis supplied)

Despite Weisberg informing the SHO that there was no such order, the SHO ignored Weisberg’s admission.

When Johnson again inadvertently used the real name of the mother of the child, the SHO demanded that the public leave.   BBO Assistant General Counsel Carol Wagner, still nestled at the SHO’s arm, appeared to approve of the SHO’s order evicting the public from the room.\[6]/

Fig. 5.  Excerpt from

BBO “Trial” Transcript, 12/2/03, pages 61-62  (emphasis supplied)

It was because of SHO Phillips playing around with the transcription process (see Fig. 7, infra) that Johnson did not dare stay in the hearing room without the public present, and therefore informed him that she, too, was leaving.

Surprisingly, upon being commanded by the SHO to leave the trial, a spectator immediately spoke out.  That spectator’s address to the SHO was deleted—if at all taped and transcribed—from the “trial” transcript supplied to Johnson.   Only the following lines on pages 62-64 evidence the spectator having spoken:

Fig. 6.   Excerpt from

BBO “Trial” Transcript, 12/2/03, pages 62-64  (emphasis upplied)

• Because on 17 November 2003, at a pretrial hearing, SHO Phillips had repeatedly ordered the stenographer to go off the record when Johnson spoke but to stay on the record when he spoke, Johnson feared that should the hearing officer repeat what he’d done a few weeks earlier, he could then invent what Johnson allegedly said.  So when the public was ordered out of the hearing room, leaving no public witnesses, Johnson left the hearing room with the public.  Board Rule 3.59 provided her right to a public hearing [Exhs. T(3) and T(4)].

• The documentary evidence was primarily unauthenticated files from her website.  From the list of exhibits produced after trial [Exh. N], it appears that the Bar Counsel and/or assistant Weisberg produced (pretrial, during trial, or posttrial) none of Johnson’s affidavits or exhibits or, particularly, Johnson’s Answers to Counts I and III in the Petition for Discipline, which means that the SHO had nothing in front of him on the facts and legal issues according to Johnson for those counts.  Apparently, according to Exh. N, Weisberg did include Johnson’s answer to Count II [“Trial” Exhibit 104].

After the public and Johnson left the BBO hearing room, the so-called trial continued in their absence.  Only OBC ABC Weisberg, SHO Phillips, and BBO Assistant General Counsel  Wagner were present for two days, December 2d and 3d, 2003 [Exh. Q, transcript of the 2-day hearing after the public and Johnson had left] .

o      36 were unauthenticated, alleged copies of 36 files on Johnson’s website [Trial exhibits ##7 through 41 and #104].  Twenty-six of the 36 were alleged to be from Johnson’s Drano Series.

o      6 were affidavits.  Johnson had seen only one of them [Trial exhibit #2, the affidavit by Weisberg’s assistant].  Johnson had, of course, the right to cross-examine each and every affiant.  She was to be deprived of that right, given that no affiant was to be called by Weisberg to the stand.  A second affidavit [Trial exhibit #4] might be by a member of the OBC’s administrative staff.   Johnson’s subpoena of the affiant of Trial Exhibits #1 and #3 were quashed.   Affidavits ##5 and 6 are identified as those by Retired Superior Court Judge William Simons and his son Richard, then just an attorney and presently a sitting judge.

o      22 are alleged to be impounded documents from Bristol County Probate & Family Court [Trial exhibits ##45A through 45V] .  Neither the court nor OBC ABC Weisberg ever provided them to Johnson.   Johnson has no knowledge as to what documents they are.

o      9 are alleged to be impounded documents from a Juvenile Court [Trial exhibits ##46A through 46I].  Neither the court nor OBC ABC Weisberg ever provided them to Johnson.  Johnson has no knowledge as to what documents they are.

o      28 exhibits [Trial exhibits ##76 through 103] relate to Count III.  Given that Johnson had been precluded from presenting any evidence—documentary, testimonial, physical, or circumstantial—the admission of these documents was reversible error.

o      11 letters alleged to have been written by Johnson.  Johnson was deprived of the right to contest or not contest their authentication.

The arbitrary and capricious conduct of ABC Weisberg and the BBO is glaring when one compares the number of times Weisberg moved to have Johnson amend pleadings by substituting pseudonyms for true names and the number of times Weisberg and the BBO used the true names in their pleadings and documentation, including the list of their exhibits [Exh. N], which is also a public record.  Even SHO Phillips had used the true names of all the parties and percipient witness in his Introduction at the opening of the “trial.”   See Fig. 1, supra, at 4.   The same public that he evicted because Johnson had not used a pseudonym had already heard him use the true names.  The BBO’s bad faith and ulterior motive were evident throughout the entire proceeding.

The OBC and BBO’s bad faith and ulterior motive did not end after the sham trial.  That the SJC was controlling and supervising the OBC and BBO—as admitted on the SJC website and in the Attorney-General’s pleadings in a related action\[9]/—was equally as evident:

·       The OBC and/or BBO\[10]/ did not provide Johnson with the 12-volume appendix Weisberg filed in the single-justice session of the SJC and allegedly containing the exhibits at the sham trial . . . and the SJC did not act upon Johnson’s motion seeking a copy of the 12 volumes [Exh. KK, containing three motions].

·       Because Johnson was not served the OBC’s 12-volume appendix Weisberg filed in the single-justice session of the SJC, Johnson does not know whether the OBC and/or BBO relied on the set of documents Weisberg received from either Judge Mark Lawton’s Juvenile Court or from Judge Prudence McGregor in the Bristol County Probate & Family Court. 

Those documents were the source of the first impression issue regarding the amendment of c. 209C, §13, in 1998.  All three bodies—the BBO/OBC, the single-justice session, and the full panel of the SJC—ignored the issue:

o      in the BBO [see BB-1 (table of contents), BB-2 (brief to SHO), CC (reply brief),  and Z (proposed findings of fact and rulings of law submitted to SHO at BBO],

o      in the Supreme Judicial Court for Suffolk County for the SJC single justice [Exhs. GG-1 (table of contents), GG-2 (brief), pp. 3-4, 12, 21, 24, 82-86], and

o      in the Supreme Judicial Court for the Commonwealth for the full SJC panel [Exhs. JJ-1, JJ-2 (appellate brief, SJC), JJ-10, pp. 63-65].

·       The only persons present at the sham trial were, if the transcript is to be believed, Special Hearing Officer Herbert Phillips, OBC Assistant Bar Counsel Weisberg, and BBO Assistant General Counsel Carol Wagner [Exh. Q, the “Trial” transcript after the public and Johnson had left, 12/2/03, pages 66-126, and 12/3/03, pages 4-40].

·       On December 5th, 8th, 9th, and 12th, 2003, Johnson filed four posttrial motions: for a new trial, a jury trial, a rehearing, and a conference with the Board [Exh. T].   The motions were summarily denied. [Exh. A, p. 194, Johnson’s original jury demand].

·       On 16 December 2003, one day shy of two weeks after the sham trial, Assistant Bar Counsel Weisberg alleged the sources of confidential and privileged material in a motion for a revised protective [Exh. U].   According to the transcript, the information was supplied on Chalk B.   Johnson has never seen Chalk B – and was still again deprived of her constitutional right to notice.  Weisberg’s motion was allowed on 29 December 2003 by the-late-Board Chairperson, M. Ellen Carpenter.   In December 2006, almost exactly three years after she allowed Weisberg’s untimely motion, Carpenter met sudden death.  Carpenter’s legacy to Johnson was Johnson’s disbarment on 9 August 2006.

Johnson’s arguments appealing her disbarment to the full panel of the SJC against the judgments of disbarment and contempt occurred on 6 November 2007 and are memorialized in webcasts archived at http://www.suffolk.edu/sjc/archive/2007/SJC_09820.html and http://www.suffolk.edu/sjc/archive/2007/SJC_09866.html. 

2.         There was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Board could not, consistent with its duty, accept as final the conclusion on that subject.

The Petition for Discipline contained three counts. 

Count I [Exh. A, pages 2-19]. The essence of Count I was that Johnson published:

That was untrue.  At the SJC single-justice session Johnson called the OBC prosecutor, Weisberg, to the stand.  Johnson asked Weisberg, in words for all intents and purposes,\[11]/ What was the URL on which the psychologist’s report exists?   The prosecutor’s counsel, Nancy E. Kaufman, another assistant bar counsel, objected.  The Court sustained the objection.  Johnson asked, Who was the psychiatrist or psychologist whose report the prosecutor had alleged Johnson had uploaded to her website?  Objection.  Sustained.  Johnson asked, Who was the person who was the subject of the report?  Objection.  Sustained.

Johnson had consistently contended that she did not upload such a report to her website.  That mythical report allegedly formed the basis of the accusation supporting Count I that Johnson uploaded confidential and privileged material to her website.

Significant is that in no pleading or opinion issued by the BBO or by any court has the so-called report been identified.  Neither does such a report appear as an exhibit in the BBO “trial.”   If a document purporting to be in the 12-unseen volumes comprising the BBO/OBS’s appellate appendix in support of the Board Information, it has not been either identified or referenced.

• ·       the names of two children

This was inadvertent. Johnson had both globally replaced the children’s name and cut them out of the “jpg” image files, but inadvertently overlooked a few instances.  In any event, the child who was the subject of the underlying 1987 Care and Protection action was not known in his community by his name used in that action.  His mother had long since changed his name to that of her new husband [Exhs. V, W, X, Y, and Z, for more specifics].

If Johnson had been contacted and alerted to the names by anyone, including the OBC or BBO, regarding the names they ran across and were offended by, Johnson would have removed them.  But the few times the children were named were never the issue.  The children’s names were but a smokescreen to hide the political issues. 

In fact, the SJC had earlier supported a position akin to Johnson’s in Care and Protection of Edith, 421 Mass. 703, 705 (1996) (vacating the injunction restraining father of children subject to care and protection proceeding from discussing proceeding or criticizing government's handling of matter with media):

. . . the court in Edith noted that DSS had “before any order restricting disclosure had been entered, . . . published the children's names in the newspaper, as a form of notice, in connection with its decision to seek a waiver of the need for the parents' consent to the adoption of the children.”  Edith at 706.   Given that there was no statutory requirement to publish the names of the children, the court wondered: “Nor is there any explanation why the department's publication of the children's names did not violate the same ‘compelling’ State interest in confidentiality that the department now asserts against the father.”  Id.

Exh. T(1).  Thus, SHO Phillips abused his discretion by arbitrarily, capriciously, or whimsically coming to his determined sanction.  He had already published the true names of those he later pretended were protected by an imaginary order [Figure 1, supra, at 4],  See Weld v. Glaxo Wellcome Inc., 434 Mass. 81, 85 (2001); Keene v. Brigham and Women's Hospital, Inc., 439 Mass. 223, 235 (2003) ("As a general rule, a judge should impose the least severe sanction necessary to remedy the prejudice to the [nonoffending] party"); Bolton v. Massachusetts Bay Transp. Authority, 32 Mass.App.Ct. 654, 657 (1992).

• ·       information taken from Juvenile Court and in so doing violated a Juvenile Court Standing Order.

Johnson had not been in Juvenile Court on the 1988 case and had no access to Juvenile Court records.  Johnson also did not have a Juvenile Court practice

The only direct quotes to which Weisberg could have been referring are the following direct quotes [Exh. A, p. 2, 16-17; Exh. BB-2, p. 2; Exh. II, p. 3-4; Exh. P-2, p. 2; Exh. GG-2, pp.69-70; Exh. Z, pp. 37-38, 40, 47] and which neither the SHO nor the Board nor the single justice addressed:

(1)      "justification” [CS, depo at 15],

(2)            "no live-in boyfriend" [CS 7/1/88 report at 25],

(3)            "there appears to be no significant males in [the child’s] life other than Mr. Linnehan."  [CS 7/1/88 report at 25], 

(4)       "dated a few times and have remained good friends" [CS 7/1/88 report at 17],

(5)       "there was no diagnosis of sexual abuse, the possibility is not to be eliminated.   His fear and anxiety about his father had been confirmed[;] he had under­gone a traumatic experience and now suffered from post-traumatic stress" [CS 11/10/88 deposition at 34],

(6)       "her husband Michael is very important to [Linnehan’s son] and that Michael treats her son as if he were his own" [CS 1/5/92 report at 2; also 15].

(7)       “except for one or two" [CS 1/5/92 report at 8]. Clearly the quotations alone harm no one. 

Clearly no one was harmed by those seven quotes, which were taken from the investigator’s deposition, which
 

·        was not a court-ordered deposition,
 

·        was not filed in any court, and

·        was not taken under the aegis of the Juvenile Court.  It was taken under the caption of  the custody case in the Probate and Family Court case

and from two reports, which were filed only in Juvenile Court.  Johnson did not get them from the court.  Johnson saw them when meeting with her client.  Items numbered 2, 3, 5, and 6 were proven to be untrue.

Although no one moved to impound any files in any court, even if we assume arguendo that the files were impounded,  Com. v. Dabrieo, 370 Mass. 728, 741-742 (1976), clearly allowed impounded materials to be used in a later action.

Count II  [Exh. A, pages 20-121].  The essence of Count II was that Johnson commingled client’s funds with her personal funds and that she uploaded to her website confidential facts.

First, The Petition for Discipline did not state the amount of funds that were allegedly commingled.  Second, OBC Weisberg never stated in any other pleading the amount of the so-called commingled funds.  Third, SHO Phillips found that Johnson owed no one any money.   Fourth, when Johnson asked Weisberg in the single-justice session, Whose funds were commingled with Johnson’s personal funds?   Her counsel objected and the court sustained.  Johnson asked, What was the amount of the funds allegedly commingled?  Objection.  Sustained. 

Bottom line: At no time did the five entities—the Bar Counsel or his assistant Weisberg, the SHO, the BBO Board, the SJC single justice, and the SJC full panel—ever identify how much money was allegedly commingled.  The result: Even SHO Phillips found that Johnson owed no client any money and that she did not commit fraud or deceit or any misrepresentation [Exh. AA, pp. 26-27; also Exh. N; BBO “Trial” Exh.  59], but the Massachusetts High Court ignored (1) that Johnson had deposited the money she received into her account after she had earned the money and (2) that there was no dispute about fees at the time Johnson deposited the money received into her personal account.  Notwithstanding the clear facts, the Massachusetts High Court nevertheless found that Johnson violated the commingling rule.

As to the confidentiality:  When the libelous Petition for Discipline became public . . . almost immediately . . . about the fee dispute, Johnson uploaded to her website  the bill in her Answer to the Petition in order to show that she was not bilking the complainant [Exh. A, pp. 79-93 (as shown in Answer to Count II) and Exh. JJ-7, pp. 1-12 (copy of actual accounting)].   

The background:  On 16 December 1999, several months before filing a complaint with the BBO, Deborah Sano sent Johnson an email complaining about Johnson’s bill to four attorneys, none of whom was representing the Sanos regarding the issue of the bill [Exh. Z, p. 18; Exh. N; BBO “Trial” Exh.  59].   One of the four attorneys was a niece of the Sanos.  Two,  were friends of the Sanos.   And the fourth was a criminal defense attorney.   Johnson suggested to Deb Sano that the four arbitrate the fetal fee dispute or, in the alternative, take the dispute to the Fee Arbitration Board [Exh. Z, p. 18; Exh. N; BBO “Trial” Exhs.  60 and 61 (Johnson to Sano)].   

Instead, three months later, Deb Sano complained to the BBO. 

Exh. AA, pp. 26-27; also Exh. N; BBO “Trial” Exh.  59.   The SHO did find, however, that Johnson commingled funds but never said what the alleged amount was.  Neither did Weisberg.

Johnson contended not only that a bill is neither confidential nor subject to the attorney-client privilege, for an attorney has a right to defend against the complaint—issues that Johnson argued in the underlying disciplinary action [Exh. F-5]. 

As to the charge of breach of confidentiality:   As far as Johnson knows, Deb Sano’s complaint was solely about the fee charged.  Prior to that complaint, Johnson had uploaded nothing to her website about anyone in Deb Sano’s family, and Johnson has no knowledge that Deb Sano ever complained about the bill or Johnson’s Answer to Count II being uploaded to the website.  So the breach of confidentiality is a charge brought sua sponte by the OBC and was, like all the other charges, a smokescreen to hide the ulterior political motivation.

Notwithstanding her objection to the breach of confidentiality claim, Johnson answers as follows:  The Sanos never identified what the OBC claimed was privileged or confidential.   “A party asserting the attorney-client privilege (or protected work product) has the burden to show that the privilege applies.” Hanover Ins. Co. v. Rapo & Jepsen Ins. Services, Inc., 449 Mass. 609, 619, 870 N.E.2d 1105. 1114 (2007), citing In the Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. Ltd. (Bermuda), 425 Mass. 419, 421, 681 N.E.2d 838 (1997).

The purpose of the attorney-client privilege is to preclude an attorney from divulging confidential communications with the client.  S.J.C. Rule 3:07, DR 4-101(C), 382 Mass. 778 (1981).   The privilege, however, is not absolute and may be waived by the client either expressly or implicitly.  The defendant concedes that if a client assails his attorney's conduct the privilege as to confidential communications is waived because the lawyer has a right to defend himself.  See Commonwealth v. Brito, 390 Mass. 112, 119 (1983).  See also Tasby v. United States, 504 F.2d 332, 336 (8th Cir.1974), cert. denied, 419 U.S. 1125, 95 S.Ct. 811, 42 L.Ed.2d 826 (1975). . . .

Com. v. Woodberry, 26 Mass.App.Ct. 636, 637 (1988). 

            "A lawyer may reveal ... (4) Confidences or secrets necessary ... to defend himself ... against an accusation of wrongful conduct."   Brito, 390 Mass. at 119, citing 8 J. Wigmore, Evidence § 2327(6), at 638 (McNaughton rev. ed. 1961);  S.J.C. Rule 3:07, as amended, --- Mass. --- (1981). “The defendant attorney, for example, will be entitled to testify to relevant statements by his former client unrestrained by the attorney-client privilege.”  Glenn v. Aiken, 409 Mass. 699, 706-707(1991), citing Brito, 390 Mass. at 119 and S.J.C. Rule 3:07, DR 4-101(C) (4), as appearing in 382 Mass. 778 (1981). 

Prior to receiving Johnson’s bill, it was clear that the Sanos were delighted with Johnson’s performance.\[12]/  See Exh. A, textbox above ¶56 (Johnson produced to Weisberg all emails to and from the Sano family.  Deb Sano ultimately complained about Johnson’s work only after she received the bill.

. . .  The widely accepted principle, however, is that:

"[A] client is not free to make various allegations of misconduct and incompetence while the attorney's lips are sealed by invocation of the attorney-client privilege.  Such an incongruous result would be inconsistent with the object and purpose of the attorney-client privilege and a patent perversion of the rule.  When a client calls into public question the competence of his attorney, the privilege is waived" (citations omitted).

Com. v. Woodberry, 26 Mass.App.Ct. at 637-638 (emphasis supplied), quoting Tasby, 504 F.2d at 336. and 8 J. Wigmore, Evidence §2327(6), at 638 (McNaughton rev. 1961).

            Johnson contends the answer is, Yes . . . particularly where the BBO announced to the press that Johnson had breached confidentiality [Exhs. PP and QQ].\[13]/ \[14]/ “If a client chooses to waive the privilege of confidentiality, the attorney is under no further ethical obligation to keep the communications secret.”   Atty. for Plymouth Dist. v. Board of Selectmen of Middleborough, 395 Mass. 629, 633-634 (1985), citing S.J.C. Rule 3:07, Canon 4, SE 4-101 (C)(1), (2), as amended, 382 Mass. 778 (1981).   [Exh. O].

  A further point about confidentiality:  As noted in note 12, supra, Johnson produced an email from the complainant stating that they were looking forward to the day when they would see their story on “your wonderful, educational website” [Exhs. A, p. 119, ¶95; Exh. JJ-6 in sub-Exh. C, p. 1].  Although Johnson never had the intent to upload the complainant family’s story, she did consider that email as, at the very least, implicit permission to publish their story.   Subsequently, when the time came to defend herself, Johnson did find the necessity to publish bits and pieces of their story in her Answer to the Petition for Discipline.   The OBC/BBO never commented in writing or orally about the email implying permission, and remained relentless in accusing Johnson of violating confidentiality rules.   

Count III  [Exh. A, pages 122-192; Exh. JJ-2, pp. 60-61].  The essence of Count III was about Johnson having been found in contempt on 22 March 1995 for violating an order of 3 March 2005 and not paying the fines and costs imposed.   Johnson had always contended, beginning on 22 March 1995, that there was no order of 3 March 1995, i.e., that she was found in contempt of a non-existent order.   The case ended up being of the Rube Goldberg variety.\[15]/   See Exh. A, pp. 122-199. Johnson’s Answer to Count III.

The BBO precluded Johnson from presenting any defense against the charge.   Essentially, the BBO was allowing the OBC to use the doctrine of offensive collateral estoppel.  Johnson argued extensively below on the subject [Exh. CC, p. 5-7; Exh. EE, p. 17-18; 20-22; Exh. HH-2, p. 13-14].

“Offensive collateral estoppel ‘occurs when a plaintiff seeks to prevent a defendant from litigating issues which the **783 defendant has previously litigated unsuccessfully in an action against another party.’ ” Commonwealth v. Two Parcels of Land, 48 Mass.App.Ct. 693, 697, 724 N.E.2d 739 (2000), quoting from Whitehall Co. v. Barletta, 404 Mass. 497, 501 n. 9, 536 N.E.2d 333 (1989)

Com. v. Rabb, 70 Mass.App.Ct. 194, 197, 873 N.E.2d 778, 782-783 (2007).

The dispute as to the nature of these adversary proceedings adds another dimension legally.  The United States Supreme Court declared disbarment proceedings to be of a “quasi-criminal nature.”  In re Ruffalo, 390 U.S. (Ohio) 544, 551 (1968); Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S.(N.J.) 423,  438 (1982) (Justice Brennan, concurring in the judgment).  In contrast, the Massachusetts SJC deems disciplinary proceedings to be civil in nature and refuses to accept the Supreme Court’s decisions on the issue as the last word.   
Were Massachusetts to follow Ruffalo, the quasi-criminal nature of the proceedings would trigger article XII of the Declaration of Rights, allowing Johnson to have presented all proofs favorable to her, to have met witnesses against her face to face, to have been fully heard in her defense, and not to have been deprived of her property but by the judgment of her peers.

Further, were the Ruffalo characterization of the nature of the disciplinary proceedings in followed in Massachusetts, the BBO would not have been able to use the 1995 decision in Concord District Court against Johnson and the Commonwealth would not have been able to use the result in the disciplinary to bind Johnson as a matter of collateral estoppel.  Cf.   McKinney v. State of Alabama, 424 U.S. 669, 689 n. 5, 96 S.Ct. 1189, 1200 n. 5 (1976) (Brennan, J., concurring). 

It would be fundamentally unfair to bind a defendant in a criminal proceeding to rulings based on an earlier civil hearing with lower standards.  In criminal proceedings the state's burden of proof is beyond a reasonable doubt. In [civil] proceedings, the commissioner's burden of proof is simply by a preponderance of the evidence.

State v. Wagner, 637 N.W.2d 330, 337 (Minn.App. 2001), citing Johnson v. Comm'r of Pub. Safety, 392 N.W.2d 359, 362 (Minn.App. 1986).   Thus “the difference in the burden of proof in criminal and civil cases precludes application of the doctrine of collateral estoppel.”  One Lot Emerald Cut Stones and One Ring v. U.S., 409 U.S. (Fla.) 232,  235 (1972) (civil forfeiture action);  State v. Wagner, 637 N.W.2d 330, 339 (Minn.App. 2001), citing One Lot Emerald.

“ ‘Fairness is the decisive consideration’ in the use of offensive collateral estoppel.” Commonwealth v. Two Parcels of Land, 48 Mass.App.Ct. at 698, 724 N.E.2d 739, quoting from Smola v. Higgins, 42 Mass.App.Ct. 724, 727, 679 N.E.2d 593 (1997). The court must be satisfied that the party to be estopped had a “full and fair opportunity to litigate the issue.” Brunson v. Wall, 405 Mass. 446, 451, 541 N.E.2d 338 (1989), *198 quoting from Fidler v. E.M. Parker Co., 394 Mass. 534, 541, 476 N.E.2d 595 (1985). The doctrine operates to protect the judicial system from redundant litigation, and to restrict or eliminate the possibility of conflicting results by different judges based upon the same facts and applicable law. At the same time, its application should “not ... deprive a litigant of an adequate day in court.”  Restatement (Second) of Judgments § 27 comment c, at 252 (1982).

Com. v. Rabb, 70 Mass.App.Ct. 194, 197-198, 873 N.E.2d 778, 783 (2007).   Johnson did not have a “full and fair opportunity to litigate the issue” in the Concord District Court case, but the BBO never gave her the opportunity to demonstrate that she did not have that full and fair opportunity in Concord.  For example, in Concord the so-called March 3d (1995) order was non-existent.   See Exh.  A (Count III); Exhs.  JJ-8 and JJ-13.  Somehow a document purporting to be the March 3d document appeared eight years later when Assistant Bar Counsel Weisberg produced it in the middle of the disciplinary action in 2003!   See Exh. JJ-13.  So whether that document ever existed in 1995 was a question for a fact-finder . . . if not a jury.  Liacos, Handbook of Massachusetts Evidence (6^th ed.), §12.7.1, p. 697.  Secondary evidence may not be considered if there is no evidence to warrant a finding that the original ever existed.  Id.  Fauci v. Mulready, 337 Mass. 532, 540-543 (1958).

Given that all the documents from 1995 prove the non-existence of the alleged March 3d order [Exh. JJ-13], the burden of proving that an order issued on March 3d (1995) was Bar Counsel’s burden.   See Employers' Liability Assur. Corp., Ltd. v. Hoechst Celanese Corp., 43 Mass.App.Ct. 465, 484 (1997), cert. denied 426 Mass. 1103 (1997), citing Markline Co. v. Travelers Ins. Co., 384 Mass. 139, 140 (1981). 

Given that Johnson was denied a full and fair opportunity to defend against the charge both in Concord and at the BBO, the Bar Counsel was unlawfully relieved of his burden . . . all to the detriment of Johnson.

3.         The imposition of the same discipline by this court would result in grave injustice.

Where it is impossible to establish conclusively the misconduct by Johnson for purposes of a disciplinary proceeding, the disciplinary action should have been dismissed. 

In fact, the type of charges brought against Johnson are not of the type over which the Mass. SJC single-justice session has jurisdiction and which demand the imposition of disbarment [Exh. A].  The types of charges over which the SJC has jurisdiction and upon which bar counsel may petition the single justice for disciplinary action against an attorney include\[16]/:

·        misuse or loss of client funds,

·        neglect of client interests,

·        fraudulent conduct,

·        sanction in another jurisdiction,

·        conviction of a crime and

·        misrepresentation to the court.

In the instant case, none of the charges set out in the “Single Justice Practice and Procedure” was charged against Johnson, making the disposition of disbarment, if not unlawful, certainly a violation of Johnson’s right to equal protection.  Instead, Johnson not only suffered from selective enforcement and discrimination on a class-of-one theory [Exh. Z; Exh. BB-2, pp. 33, 35; Exh. CC, pp. 2-5; Exh. EE, pp. 14, 16-17; Exh. GG-2, 1. 6-7. 9. 27, 42, 105, 153-154, 162; Exh. II, 12-13; Exh. JJ-2, pp. 40-44, 66; Exh. LL-2 at 24 et seq.; Exh. RR, p. 1; Exh. SS, pp. 3-4], but also suffered from a disposition markedly disparate from other cases.  If there are similar cases—cases that arise out of an attorney exercising his or her First Amendment rights—in Massachusetts, Johnson has been unable to find them.

In fact, “ ‘[i]t is a settled and invariable principle, that every right, when withheld, must have a remedy, and every injury its proper redress.’  3 Bl. com. 109.”  Marbury v. Madison, 5 U.S. (1 Cranch) 137, 147 (1803).   Jones v. Clinton, 72 F.3d 1354, 1360 (8th Cir. (Ark.), 1996) (Mrs. Jones is constitutionally entitled to access to the courts and to the equal protection of the laws).  So is Johnson and all other people, including all other attorneys.

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.

Marbury v. Madison, 5 U.S. (1 Cranch) at 163.

[But for] two cases in which a remedy is afforded by mere operation of law . . . [Blackstone] says, “it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded.”

Id., quoting 3 Bl. com. 23.

Unfortunately, Johnson will have no relief or remedy in the Massachusetts courts for the continuing deprivation of her constitutional rights, the loss of her livelihood . . . given the existence of immunity, both judicial and sovereign.  Ironically, this Court’s father, G. Joseph Tauro, was Chief Justice when the admirable, sagacious, unanimous opinion for Morash & Sons, Inc. v. Com., 363 Mass. 612, 296 N.E.2d 461 (1973) was written (by Justice Hennessy).   In it, the Court wrote:

         Thus while municipal and sovereign immunity purport to rest upon separate grounds, they are said by many courts to share a common trait: they are logically indefensible. The courts in some jurisdictions have abolished the doctrine of governmental immunity entirely.  . See, e.g., Stone v. Arizona Hy. Commn., 93 Ariz. 384, 381 P.2d 107; *619 Muskopf v. Corning Hosp. Dist., 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457; Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill.2d 11, 163 N.E.2d 89; Campbell v. State, Ind., 284 N.E.2d 733. See also Davis, Administrative Law Treatise (1970 Supp.) s 25.00. All other jurisdictions have eroded the immunity by both statutory exceptions and judge made exceptions.

Morash, 363 Mass. at 618-619, 296 N.E.2d at 465 (emphasis supplied).  Morash was the precursor of the Massachusetts Tort Claims Act, which was enacted after Whitney.  “At the time [the Massachusetts Tort Claims Act] was enacted [in 1978], the Commonwealth's common law sovereign immunity had been abrogated for nearly one century as to certain claims.” Irwin v. Commissioner of Dept. of Youth Services, 388 Mass. 810, 813 (1983). 

                  In Irwin, the Massachusetts highest court reviewed in excruciating detail the history of the Tort Claims Act after two “significant decisions of this court” [Id. at 816]: in 1973, Morash, supra, and four years later, Whitney v. Worcester, 373 Mass. 208 (1977).   In Whitney, the high court had announced its intention to abrogate the sovereign immunity doctrine retroactively to the date of the decision in Morash, should the Legislature have failed to act by the conclusion of its 1978 session.  So in response, the Legislature effected some loosening of sovereign immunity in the Commonwealth.

                  In 1986, the SJC again re-declared its opposition to the doctrine: “[T]he doctrine of sovereign immunity is ‘logically indefensible.’” Hallett v. Town of Wrentham, 398 Mass. 550, 558 (1986), quoting Morash at 618-619. 

                  Judicial immunity also precludes Johnson finding relief from the onerous sanction imposed on her . . . despite article V of the Declaration of Rights of the Commonwealth constitutionally guaranteeing “accountability” and despite article V never having been amended or repealed.  Unfortunately, never has the word "accountable" as used in article V been interpreted by a Massachusetts court. Not even in the impressive account of the history of sovereign immunity set out in Irwin, supra, was article V cited.

So Johnson’s only hope of finding justice is in this court. She can only dream not only that this court will not impose a discipline identical to that imposed by the SJC but also that this court will—if it has the power to do so—recommend that the United States Supreme Court “rehear” her Petition for Writ of Certiorari of the disciplinary action.

4.         There was no misconduct established by either the Office of Bar Counsel or the Board of Bar Overseers or by the single justice or the full panel of the Massachusetts Supreme Judicial Court; thus no discipline was warranted. 

After “trial,” the BBO filed in the SJC single-justice session an “Information” recommending that Johnson be disbarred.  None of the grounds which are listed in the “Single Justice Practice and Procedure” and upon which Bar Counsel may petition the single justice to discipline an attorney was charged against Johnson.\FN[17]/  In the SJC single-justice session, Johnson was entitled to a trial de novo, but that, too, was denied her.\[18]/

Although in reading the opinion of the SJC panel, one, including this court, may conclude, Ahah, the SJC found violations.  Unfortunately, the opinion has no factual basis to support its conclusions.  In Appendix G, submitted as an attachment to her Petition for Writ of Certiorari filed in the Unites States Supreme Court, Johnson interleaved her factual and legal corrections paragraph by paragraph [Exh. NN-2].   Summaries of the counts are in Exh. NN-1.

Had Johnson had a fair and impartial trial, the truth would have come out.  Without a fair and impartial trial, the SHO’s Hearing Report [Exh. AA], the Board’s Information [Exh. FF], the single-justice’s memorandum [Exh. HH-2 (on file as Paper 7)], and the SJC panel’s opinion [on file as Paper 8] were but rubber-stamps of the original Petition for Discipline.   Johnson’s responses to the BBO and the High Court’s opinions are set out in Exhs. BB-2, GG-2, II, JJ-1-13, NN, and OO.

Had Johnson been allowed her constitutional rights—under the State and/or the United States constitutions—the Massachusetts judiciary simply would have been unable to establish either conclusively or inconclusively that Johnson misconducted herself.

Where it was impossible to establish legitimately for purposes of a disciplinary proceeding in this court that Johnson misconducted herself, the imposition of discipline identical to that imposed by the Massachusetts Supreme Judicial Court must not be imposed by this court.

CONCLUSION

Due Process

            The disciplinary proceedings initiated by the Office of Bar Counsel and affirmed by the Massachusetts Supreme Judicial Court were replete with violations of due process.

“[C]ourts . . . have carefully delineated elements of due process specifically for attorney disciplinary proceedings. See Wilburn Brewer, Jr., Due process in Lawyer Disciplinary Cases: From the Cradle to the Grave,5) (identifying seven elements of due process in attorney disciplinary proceedings). See also In re Robson (Alaska 1978), 575 P.2d 771 (discussing right to neutral decision-maker and holding that counsel associated with either the prosecution or defense of attorney disciplinary proceeding should not be present during deliberations); State v. Turner (1975), 217 Kan. 574, 538 P.2d 966 (discussing right to public hearing); People v. Morley (Colo.1986), 725 P.2d 510 (identifying right to call and cross-examine witnesses); In re Meade (1985), 103 Wash.2d 374, 693 P.2d 713 (examining right to counsel); Kentucky Bar Ass'n v. Shewmaker (Ky.1992), 842 S.W.2d 520 (discussing right to pretrial discovery and taking of depositions); Matter of Jaques (E.D.Tex.1997), 972 F.Supp. 1070 (requiring burden of clear and convincing evidence).

¶ 86 Similarly, in In re Schlesinger (1961), 404 Pa. 584, 172 A.2d 835, the Pennsylvania Supreme Court, relying on the U.S. Supreme Court's decision in In re Murchison (1955), 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942, expressly ruled that the combination of the functions of prosecutor, judge and jury in an attorney disciplinary proceeding violated due process. One of the concerns addressed by the Pennsylvania Court was that the Committee on Offenses (like the COP in Montana) appointed counsel to prosecute on its behalf. Schlesinger, 172 A.2d at 840. The court stated:

Here, a member of the bar, charged with unprofessional conduct by a bar Committee on Offenses, was prosecuted on the Committee's complaint before a Subcommittee, composed of three members of the Committee, sitting as the trial tribunal. In such a procedure, so contrary to traditional American judicial concepts, unfairness was, ipso facto, inherent; it was fraught with the possibility of temptation to each member of the trial tribunal to favor, consciously or unconsciously, the prosecuting body which appointed him and of which he was a member. The record as a whole contains a reasonable basis for doubt as to whether impartiality on the part of the members of the tribunal was completely absent and suggests an unsympathetic predisposition toward the appellant.

Schlesinger, 172 A.2d at 841. The Schlesinger court concluded that an actual “predilection to favor one side over the other is not required in order to vitiate a judicial proceeding as being violative of due process.”  Schlesinger, 172 A.2d at 841. Rather, the respondent need merely show that a “possible temptation” exists. Schlesinger, 172 A.2d at 841

Goldstein v. Commission on Practice of Supreme Court, 297 Mont. 493, 520-521, 995 P.2d 923, 940-941 (2000) (Hunt, Regnier, and Gray, JJ., concurring, and Nelson, J.,  dissenting).

First Amendment [passim]

. . . Time, place and circumstances determine the constitutional protection of utterance. The First Amendment and the Fourteenth Amendment, insofar as it protects freedom of speech, are no exception to the law of life enunciated by Ecclesiastes: . . . “(A) time to keep silence, and a time to speak.” Eccles. 3:1, 7. Of course, a lawyer is a person and he too has a constitutional freedom of utterance and may exercise it to castigate courts and their administration of justice.

In re Sawyer, 360 U.S. 622, 666 (1959) (Frankfurter, J. with Clark, Harlan, and Whittaker, JJ., joined, dissenting

Case law in Massachusetts and in other state and federal jurisdictions is overwhelmingly in favor of Johnson, i.e., overwhelmingly supports her positions that lawyers have a duty to report judicial wrongdoing and judicial inequities and that the First Amendment guaranteed free, political speech.  “The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.”  Thornhill v. Alabama, 310 U.S. 88, 101-102 (1940).  The First Amendment “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”  Roth v. United States, 354 U.S. 476, 484 (1957).  Meyer v. Grant, 486 U.S. 414, 421 (1988).

There was such an infirmity of proof establishing the misconduct by Johnson that the imposition of the same discipline by this court would result in grave injustice.  Where there was no misconduct established by either the OBC or the BBO or by the Massachusetts SJC (both single-justice and full-panel sessions), no discipline was warranted. 

Signed under the pains and penalties of perjury.

                                                           Respectfully submitted,

                                                           Barbara C. Johnson, pro se

8 June 2008    /s/ Barbara C. Johnson barbaracjohnson@worldnet.att.net

                                                            Barbara C. Johnson, Esq., Pro se

                                                            6 Appletree Lane

                                                            Andover, MA 01810-4102

                                                            978-474-0833

                                                            Formerly BBO #549972
                                                            First Circuit Bar No. 36719